Delhi District Court
State vs 1. Naresh @ Pappu on 12 May, 2011
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI.
Sessions Case No. 1147/2009
Unique Case ID: 02404R0225042009
State Versus 1. Naresh @ Pappu
S/o Udai Vir
R/o Jhuggi No. 25, Kishor Market
Kingsway Camp, Delhi.
(Acquitted)
2. Yashpal Bansal
S/o Chiranji Lal
R/o Flat No. 549, Sanjay Enclave
Jahangirpuri, Delhi.
(Acquitted)
3. Arjun Gulati
S/o Janak Raj Gulati
R/o BN 53, Shalimar Bagh, Delhi.
(Acquitted)
4. Nirmal @ Titoo
S/o Amar Nath
R/o Malikpur, 85, Delhi.
(Proclaimed Offender)
5. Neeraj @ Vikram
S/o Kishan Pal
R/o N15678, Indira Vikas
Colony, Nirankari Colony
Jahangirpuri, Delhi.
(Acquitted)
FIR No. : 150/2009
Under Section : 399/402 Indian penal Code.
Police Station : Shalimar Bagh
St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 1 of 51
Date of committal to Sessions Court : 10.09.2009
Judgment reserved on : 20.04.2011
Judgment pronounced on : 12.05.2011
JUDGMENT
Brief Facts:
Case of prosecution in brief is that on 24.05.2009 at about 8.15 PM, the accused Naresh @ Pappu, Yaspal Bansal, Arjun Gulati, Nirmal @ Titoo (since Proclaimed Offender) and Neeraj @ Vikram assembled at Kainchi Wala Bagh, near Haryana Nahar, Haiderpur, Delhi for the purses of committing robbery at petrol pump and made preparations for committing dacoity and thereby committed an offence punishable under Section 399/402 Indian Penal Code.
Case of Prosecution in brief: Case of the prosecution in brief is that on 24.05.2009 at about 6:45 PM, Inspector Pooran Chand received a secret information that the gang of Pappu Pager would be coming on motorcycles at Kainchiwala Bagh, near Haiderpur at about 8:00 PM in order to commit robbery at Indian Oil Petrol Pump, Haiderpur, and if raided could be apprehended along with the arms. Thereafter, inspector Pooran Chand passed on the secret information to the SHO concerned and on instructions, he constituted a raiding party comprising of himself, SI Baljeet Singh, HC Shesh Dhar, SI Sudhir St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 2 of 51 Gulia, HC Abbas Raza, Ct. Umed, Ct. Mehandi Hassan, Ct. Manoj, Ct. Devender, Ct. Pradeep and Ct. Ramesh including the secret informer and left the police station in Tata 407 vehicle vide DD No. 19A and reached the spot i.e. Haiderpur Red Light at about 7.45 PM where he asked four five public persons to join the raiding party but none agreed. Thereafter, the raiding party was divided into separate teams and when they reached the spot, they saw three motorcycles parked at the gate of Kainchi Wala Park and found some persons sitting in the park in a circle, whom the secret informer pointed out as the members of Naresh @ Pappu Pager gang. Thereafter, at about 8:15 PM, Ct. Mehandi Hassan who was in civil dress was directed to hear conversation of those boys and after being satisfied with the secret information, to make the signal from his Very Light Pistol (VLP). Ct. Mehandi Hassan went near the boys and after hearing their conversation made a signal from his VLP on which three persons sitting in the park started coming out from the park one by one and started sitting on their motorcycles, but in the meantime they were overpowered by the members of the raiding party. One knife was recovered from the possession of Naresh, one danda was recovered from the possession of Yashpal Bansal iron rod was recovered from Nirmal @ Titoo and one polythene containing chilli powder was recovered from Neeraj @ Vikram. All the aforesaid articles were seized by the police. Thereafter, Inspector Pooran St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 3 of 51 Chand prepared the rukka and got the case registered and the accused persons were arrested in this case. After completing the investigations, the charge sheet was filed before the court. CHARGE:
Charge was settled against all the above five accused persons under Section 399/402 Indian Penal Code to which they pleaded not guilty and claimed trial.
EVIDENCE:
In order to discharge the onus upon it, prosecution has examined as many as six witnesses.
PW1 HC Raghuraj has been examined by way of affidavit being a formal witness which affidavit is Ex.PW1/1 bearing his signatures at points A and B. The witness has deposed that on 24.5.2009 he was posted as Duty Officer in Police Station Shalimar Bagh from 4 PM to 12:00 (night) and at 11:25 PM on receipt of rukka from Ct. Devender, he registered the FIR in the present case, copy of which is Ex.PW1/A. He also made endorsement upon the rukka which is Ex.PW1/B. This witness has not been cross examined on behalf of the accused despite opportunity in this regard.
PW2 HC Shesh Dhar has deposed that on 24.5.2009 he was posted at police station Shalimar Bagh and on that day Inspector St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 4 of 51 Puran Chand received secret information that the gang of Pappu Pager would be collecting near the Indian Oil Petrol Pump, Haider Pur in order to commit robbery. He has deposed that, Inspector Puran Chand formed a raiding party comprising of himself (witness), SI Sudhir Gulia, SI Baljeet, HC Abbas Raja, Ct. Umed, Ct. Mehendi Hassan, Ct. Manoj, Ct. Devender, Ct. Pradeep and Ct. Ramesh. According to the witness, the raiding party left the police station vide DD No.19A . Witness has deposed that on the way, Inspector Puran Chand divided the police party in four teams i.e. Team No. 1 comprising of Inspector Puran Chand, Ct. Mehndi Hasaan and Ct. Umed; Team No.2 comprising of SI Sudhir Gulia, HC Abbas Raja & Ct. Pradeep; Team No.3 comprising of SI Baljeet, Ct. Ramesh and Ct. Manoj and the Team No.4 comprising of himself (witness) and Ct. Devender. According to the witness, Ct. Mehndi Hassan was in civil dress whereas all the members of the raiding party were in uniform. He has deposed that Inspector Puran Chand has stopped some public persons at the Red Light, Ring Road and informed about the secret information and requested them to join the raiding party but none of the public witnesses joined and thereafter, without wasting any more time, they reached at Kainchi Wala Bagh, Outer Ring Road, Haider Pur near the Neher. According to this witness, at the gate of the park, the secret informer pointed out towards 56 boys who were sitting in the park in dark and outside the gate of the park St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 5 of 51 there motorcycles were parked. He has deposed that Inspector Puran Chand directed Ct. Mehndi Hassan to go inside the park and to hear the conversation of the said boys and also directed him to signal the raiding party by varylight pistol, after confirmation that they were the member of the Papu Pager Gang. According to the witness, at about 8:15 pm, Ct. Mehndi Hassan signaled the police party by firing the varylight pistol and on this all the said boys started running towards the gate of the park. The witness has further deposed that Team No. 1 apprehended two boys whose names were later on revealed as Pappu Pager and Arjun Gulati who were already sat on their motorcycle bearing No. DL8SZ8691; Team No. 2 apprehended two persons whose names were later on revealed as Yashpal Bansal and Nirmal @ Titu who had also sat on their motorcycle bearing No. DL8SAA3233 make Pulsar of red colour; Team No. 3 apprehended one boy whose name was later on revealed as Neeraj who had sat on his motorcycle bearing No. DL8SX6858 of black colour. All the abvoe boys were casually searched on which one knife was recovered from the possession of accused Pappu Pager; one danda was recovered from the possession of accused Yashpal Bansal; one iron rod was recovered from the possession one boy whose name he does not remember; a packet of red chili powder was recovered from the possession of accused Neeraj. The witness St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 6 of 51 has further deposed that Inspector Puran Chand prepared the sketch of the knife recovered from the accused Pappu Pager whose total length was found to be 39.5 cm, the length of the blade was 27.5 cm and the handle was 12 cm in length. He has further deposed that the danda recovered from the possession of accused Yashpal Bansal was 2.5 feet in length and the iron rod recovered from other boy was found to be 2 feet and 8.6 inches in length. According to the witness, the knife, danda, iron rod and red chilli powder were converted into separate pullandas with the help of a cloth and sealed with the seal of PC and were taken into possession and they were duly seized in respect of which seizure memos were prepared. Witness has deposed that the three motorcycles were also taken into possession and their seizure memos were prepared and the seal after use was handed over to him (witness). According to the witness, Inspector Puran Chand prepared a Tehrir which was handed over to Ct. Devender for registration of the case and after registration of the FIR Ct. Devender returned to the spot along with SI Hira Lal to whom the investigations were handed over. The witness has further deposed that, SI Hira Lal prepared the site plan at the instance of Inspector Puran Chand. According to him it was after their interrogation that all the accused persons were arrested and their disclosure statements were recorded. The witness has deposed that he was left at the spot for guarding the same while rest of the members of the police party St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 7 of 51 left the spot one by one and he remained at the spot till about 5:00 am and thereafter on the directions of SI Hira Lal he returned to the police station where his statement was recorded. The witness has further deposed that in their disclosures, the accused Arjun Gulati disclosed that he had lifted the motorcycle bearing No. DL8SZ8691 from BH Block Shalimar Bagh. This witness has correctly identified the accused Naresh, Yashpal Bansal, Arjun Gulati and Neeraj in the court by pointing out towards them and also by names. This witness has also identified the case property i.e. dagger/ knife with a wooden handle as the same which was recovered from the possession of accused Naresh @ Pappu which is Ex.P1; danda as the same which was recovered from the possession of the accused Yashpal Bansal which is Ex.P2; iron rod as being recovered from one of the boys apprehended at the spot but from whom he cannot tell, which rod is Ex.P3; polythene having the red chili powder as the same which was recovered from the possession of accused Neeraj @ Vikram, which is Ex.P4.
During cross examination by Ld. defence counsels, the witness PW2 has deposed that the ravangi was made collectively by all the members of the police party but not individually. According to him the secret information was reduced into writing vide DD No. 18A. He is not aware if the senior officers were informed about the secret information by Inspector Puran Chand. In his presence the St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 8 of 51 SHO did not give any information regarding the secret information received by him to the ACP. Witness has deposed that they went to the spot in a Tata407 which was being driven by Ct. Ramesh. He further deposed that one officer was sitting along with the driver and the secret informer was also sitting in the cabin of the driver. According to the witness, all the members of the police party were duly armed and were carrying their official arms. He deposed that the distance between the police station Shalimar Bagh and spot of the incident is about 2 km. Witness has admitted that on one side of the Road is Kainchi Wala Bagh and on the other side there is police station Samay Pur Badli. He deposed that the investigating officer had tried to join 45 public persons in the police party and that IO did not take their names and addresses nor he gave any notice to the public persons who refused to join the police party. According to him, on one side of the park there is Ring Road and on other side of the park there is a Neher whereas there is Haider Pur village on other sides of the park. This witness is not aware if the boundary of Haider Pur village touches the boundary of the park and there is one exit gate of the park which opened towards the Haider Pur village. Witness has deposed that the park is measuring 23 acres and is maintained by the government but he did not notice any Chowkidar in the park nor he noticed any name of the chowdary or mali written on the walls of the park or at any other place. He has deposed that St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 9 of 51 there is light only on the walking path and not in the entire park and that the park is having a boundary wall which is very small in height measuring about 3 feet and one can easily cross the same. Witness has denied the suggestion that the boundary wall towards Ring Road is 56 feet high which boundary extends to all the directions. He has further testified that there are sarias/ janglas on the said boundary wall only towards one side and on the side of Neher there is no jangla as there is a mud mound on that side and one can easily come from there. According to the witness, on the side of the Neher there are large number of plants but he is unable to tell whether there is a Nursery or not as he had seen only one gate in the park which gate is closed during the night hours. He has also deposed that only the smaller gate for passage is left open but is unable to tell whether this gate openes on the left or right side. He is unable to tell if it is the Chowkidar of the park who closes the gate and admits at the time of the alleged incident (8 pm) some Chowkidar would always be present at the park. Witness has admitted that no Chowkidar of the park was joined in the police party as no Chowkidar was there. According to the witness, at the time when the accused were apprehended no public person was joined. He has denied the suggestion that a large number of public persons are available in this park at 8:00 pm specifically during the summer season. He deposed that the park is situated on one side towards the Ring Road and not St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 10 of 51 many people visited the same. Witness has further deposed that all the persons of the police party were carrying their mobile phones. Witness is unable to tell whether most of the mobiles were also having a Camera but according to him his mobile phone does not have a recorder. He admits that most of the mobile phones available in the market have a recorder. Witness is also unable to tell if the wireless set available with the department which is officially given to most of the officers, has the recording facility. According to him he did not see any officer of the police party carrying any video or audio recording facility despite the prior information about the accused. Witness has denied the suggestion that no such incident had happened and all documentation was done while sitting in the police station and the recoveries were planted upon the accused Naresh @ Pappu, Arjun Gulati, Neeraj @ Vikram and Yashpal Bansal and it is for this reason that none of the members of the police party have been shown to have used the latest equipments to audio/ video tape the entire incident despite prior information. Witness is unable to tell if the accused Yashpal Bansal and Neeraj do not even know how to drive a motorcycle and the recoveries of the motorcycle have been falsely planted upon them. Witness is also unable to tell where the accused persons are residing. According to him, the distance between the gate of park and the red light of Hairder Pur is about 200250 feet. He has denied the suggestion that the distance between the two St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 11 of 51 is about half a kilometer and has stated that it is slightly less than half kilometer. Witness is unable to the distance between Ct. Mehndi Hassan and the accused since he had hidden himself in the darkness. According to the witness, before the raiding party could take positions, they had seen the boys and thereafter all of them (raiding party) remained near the main entrance gate. Witness has deposed that after the firing when the accused were running towards the gate, the raiding party ran towards them. According to him, they were not visible at the gate and the accused did not see them. He has denied the suggestion that they could have been visible from the gate and as there was no place to hide and it was not plausible that the accused would have come towards them as they all were in uniform. He deposed that the accused were running towards the gate because they had their motorcycles parked there and that it was within 1015 seconds that the accused came near their motorcycles as the incident took place near the gate of the park. Witness is unable to tell how the accused came out of the gate whether one by one or not since he was positioned towards the Neher. He has further deposed that before Ct. Devender took the rukka to the police station the entire proceedings took about 2 - 2½ hours. According to the witness, after the FIR was registered, SI Hira Lal came to the spot about 12:30 am (midnight). He admits that in his presence, the IO did not lift any finger prints from the dagger recovered from the accused but the cloth for St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 12 of 51 preparing the pullands was already available with the IO. He is not aware as to who carried out the search of the accused Neeraj. According to him, Ct. Devender left the spot on foot at about 1111:15 pm and returned with SI Hira Lal at about 12:30 am (midnight). He has deposed that all the motorcycles were removed from the spot in Tata407. He does not recollect if the keys of the motorcycles were also recovered or if the same has been mentioned in any of the seizure memos. He has denied the suggestion that there was no firing incident nor any incident where the accused were present in the park. He has also denied that all the accused persons were lifted from their residence.
PW3 SI Baljeet Singh has deposed that on 24.5.2009 he was posted as Sub Inspector at police station Shalimar Bagh and on that day he was present in the police station when Inspector Puran Chand received secret information that the gang of Pappu Pager would be collecting at Kainchi Wala Bagh, near Haider Pur in order to commit robbery at petrol pump. According to the witness, Inspector Puran Chand formed a raiding party comprising of himself (witness), HC Shesh Dhar, SI Sudhir Gulia, HC Abbas Raja, Ct. Umed, Ct. Mehndi Hassan, Ct. Manoj, Ct. Devender, Ct. Pradeep and Ct. Ramesh and vide DD No.19A left the police station. He has deposed that at about 7:45 pm when they reached at Haiderpur Red Light, Inspector Puran Chand divided the police party in four teams. St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 13 of 51 Inspector Puran Chand directed Ct. Mehndi Hassan to went inside the park and to hear the conversation of the said boys and also directed him to signal to the police party by firing the VLP on confirmation. He has also deposed that, Ct. Mehndi Hassan went inside the park and at about 8:15 pm he signaled the police party on which the boys started running towards the main gate of the park where the motorcycles were parked. According to the witness, he along with Ct, Manoj and Ct. Ramesh apprehended the accused Vikram who was trying to run away on his motorcycle bearing no. DL6SX6858 make Pulsar of black colour. On formal search of the accused Neeraj, a polythene containing the red chili powder was recovered from the pocket of the shirt. The witness has deposed that, he produced the accused Vikram before Inspector Puran Chand who converted the polythene of red chili powder into a pullanda and sealed the same with the seal of PC and seized the same vide memo Ex.PW3/A bearing signatures of the witness at point A. According to this witness, the motorcycle bearing No. DL6SX6858 was also seized vide memo Ex.PW3/B bearing his signatures at point A. The witness has also deposed that, thereafter Inspector Puran Chand prepared a rukka and handed over the same to Ct. Devender at 11:10 pm for registration of the FIR. He deposed that Ct. Devender returned to the spot along with SI Hira Lal to whom further investigations were handed over. The witness has further deposed St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 14 of 51 that SI Hira Lal prepared the site plan at the instance of Inspector Puran Chand and thereafter all the accused persons were arrested and their personal search was conducted and their disclosure statements were recorded. The arrest memo of accused Neeraj is Ex.PW3/C bearing his signatures at point A, his personal search memo is Ex.PW3/D bearing his signatures at point A and his disclosure statement is Ex.PW3/E bearing his signatures at point A. According to the witness, thereafter they returned to the police station together at about 55:15 a.m. were his statement was recorded by the investigating officer in the police station. Witness has correctly identified all the accused persons in the court by pointing out towards them. He has also correctly identified the accused Neeraj @ Vikram, Naresh @ Pappu and Yashpal Bansal by name. He has correctly identified the accused Arjun by pointing out towards him but is unable to tell his name. The witness has identified the case property i.e. white polythene having the red chilli powder as the same which was recovered from the possession of accused Neeraj @ Vikram which is Ex.P4.
During his cross examination by Ld. defence counsels, witness PW3 has deposed that the ravangi was made collectively vide DD No. 19 by all the members of the police party but not individually. He is unable to tell whether the secret information was reduced into writing. He deposed that the senior officers were St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 15 of 51 informed about the secret information by Inspector Puran Chand. He further deposed that the SHO also passed on the secret information received by him to the ACP. They went to the spot in a Tata407 which was being driven by Ct. Ramesh. He deposed that Inspector Puran Chand was sitting along with the driver and the secret informer was also sitting in the cabin of the driver along with Inspector Puran Chand. According to the witness, all the members of the police party were duly armed and were carrying their official arms and that the entry with regard to the arms would be available in the Malkhana register. He has deposed that the distance between the police station Shalimar Bagh and spot of the incident is about 1½ km and has admitted that on one side of the road is Kainchi Wala Bagh and on the other side there is police station Samay Pur Badli and on one side of the park there is Outer Ring Road whereas on the other side of the park there is a Neher and on one side there is a petrol pump and on the back side of the park there is Haider Pur village. The witness has deposed that the boundary of Haider Pur village touches the boundary of the park but he cannot tell if there is one exit gate of the park which opened towards the Haider Pur village. He has deposed that the park is very huge and must be measuring many acres but he is unable to tell its exact measurement but it extends to Shishmahal and the park is maintained by the government. He did not notice any Chowkidar in the park nor he noticed any name of the Chowdary or St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 16 of 51 Mali written on the walls of the park or at any other place and has stated that Chowkidar and Mali were available in the park only during the day time. He deposed that there is sufficient light in the entire park and has denied the suggestion that the entire park is not well lit and only the walking path has been litup. According to him the park is having a boundary wall on all the four sides of the park which is about 56 feet high. Witness has further deposed that there is also a grill of 2 ½ to 3 feet on the top of the said wall and a Nursery inside the park on the side of the Neher but he has denied the suggestion that the said Nursery is guarded by a mali and chowkidar even at night. He has deposed that he had seen only one gate in the park. He has admitted that main gate of the park is closed during the night hours and only the smaller gate for passage is left open. He has admitted that no Chowkidar of the park or any other public person was joined in the police party and that there was no Chowkidar at night. He has further deposed that Outer Ring Road has a heavy vehicular and foot traffic even during night hours. He has denied the suggestion that a large number of public persons are available in this park at 8:00 pm specifically during the summer season. According to him this park is open from 6 a.m. to 6 p.m. and has denied the suggestion that the park is opened 24 hours and does not close. He is not aware of any notification of the government directing closing of public parks by 6 p.m. and has denied the suggestion that the fact St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 17 of 51 regarding the closing of park by 6 pm is his self creation. The witness has further deposed that none of the members of the police party were carrying their mobile phones and that there were directions of Inspector that all the mobiles should be switched off and no member of the police party would carry the mobile. He has further deposed that the said directions were oral and were not reduced into writing by the IO and states that they had left their mobiles in their own private rooms and did not deposit the same officially with the MHC(M) or any other authority but he did not mention about this fact to the IO in his statement. He has denied the suggestion that there were no such directions and they were all carrying their mobile phones having the facility of audio/ video recording. He admits that senior officers were carrying their wireless set and states that the wireless set available with the department which is officially given to most of the officers does not have any audio recording facility and he also did not see any officer of the police party or the IO carrying any video or audio recording facility despite the prior information regarding the accused persons. Witness has denied the suggestion that no such incident had happened and all documentation was done while sitting in the police station and the recoveries were planted upon the accused Naresh @ Pappu, Arjun Gulati, Neeraj @ Vikram and Yashpal Bansal and it is for this reason that none of the members of the police party have been shown to St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 18 of 51 have used the latest equipments to audio/ video tape the entire incident despite prior information. Witness has no knowledge if the accused Neeraj does not even know how to drive a motorcycle and the recovery of the motorcycle has been falsely planted upon him. He has denied the suggestion that there was no recovery of the motorcycle and the said motorcycle has been falsely planted upon the accused Neeraj and other accused persons to work out their theft cases registered previously. Witness is also unable to tell where accused Neeraj is residing and has deposed that the distance between the gate of park and the red light of Haider Pur is about 1500 yards which is almost less than half a kilometer. He has denied the suggestion that the distance between the two is about half a kilometer. He is also unable to tell the distance between Ct. Mehndi Hassan and the accused and has denied the suggestion that Since Ct. Mehndi Hassan had never gone to the spot as alleged by him and no such incident had taken place due to which reason he is unable to tell the distance. He has also deposed that he was positioned outside the park i.e. on the service road from the Ring Road on the one side of the park. According to him he had apprehended the accused Neeraj at the gate of the park and that the gate is on the service road itself. He deposed that he was in uniform and was visible from the place where he was standing outside the park on the service road. He has denied the suggestion that it was not plausible that the accused would St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 19 of 51 come towards them as they all were in uniform. According to him, the accused were running towards the gate because they had their motorcycles parked there and they did not see them standing there. He was standing towards petrol pump. He has deposed that it was within a matter of 1½ to 2 minutes that the accused came near their motorcycles at the gate from where the accused Neeraj was apprehended. He has deposed that the accused persons came out of the smaller gate one by one but none of the accused tried to rush towards any directions and they all rushed towards their motorcycles. According to the witness, before Ct. Devender took the rukka to the police station the entire proceedings took about 3 hours and after registration of the FIR, SI Hira Lal came to the spot about 12:30 am (midnight) along with Ct. Devender. The witness has deposed that in his presence, the IO did not lift any finger prints from the dagger recovered from the accused but the cloth for preparing the pullands was already available with the IO. He states that he himself carried out the search of accused Neeraj but he is unable to tell when Ct. Devender left the spot. He deposed that all the motorcycles were removed from the spot in Tata407 but he is unable to recollect if the keys of all the motorcycles were recovered but in so far as the motorcycle of Neeraj is concerned the keys were recovered as Neeraj had already put the keys in the motorcycle and was about to run away. The witness is unable to recollect whether he told the IO that St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 20 of 51 the accused Neeraj had put the keys on his motorcycle or that the keys were recovered. Witness is unable to tell if there was no seizure memo of the keys and has denied the suggestion that since no keys were recovered, it was for this reason there was no seizure memo or that it is for this reason that he did not mention this fact to the IO in his statement. According to the witness, the red chilli powder was measured by the IO with the Batte Wala Tarazu and that it must be around 9:30 pm at that time, but he is unable to tell from where the IO got the Tarazu. Witness has admitted that there are no shops in the vicinity and states that the IO must have sent some Sipahi / Official to fetch the Tarazu, but he is unable to tell how the said Sipahi was sent and when he came back. The witness has further deposed that he was sitting at a distance of 1015 steps from the gate and on seeing the fire they ran towards the gate. He is unable to tell the distance between the gate and the place where the accused had gathered. Witness has denied the suggestion that the entire incident has been concocted by him and the chilli powder was never weighed rather, it was planted upon the accused as it was already available with the IO. He has further denied the suggestion that there was no firing incident nor any incident where the accused were present in the park or that all the accused persons were lifted from their residence.
PW4 Ct. Mehndi Hassan has deposed that on 24.5.2009 he was posted at Police Station Shalimar Bagh and on that day he St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 21 of 51 was present in the police station when Inspector Puran Chand received secret information and they had to reach Kainchi Wala Bagh. He along with Inspector Puran Chand, SI Sudhir Gulia, SI Baljeet, HC Shesh Dhar, HC Abbas Raja, HC Umed, Ct. Manoj, Ct. Devender, Ct. Pradeep and Ct. Ramesh (total 11 in numbers) left the police station. According to the witness, on the way, Inspector Puran Chand divided the police party in four teams and given the numbers as team 1, team 2, team 3 and team 4. Team no.1 was comprising of Inspector Puran Chand, Ct. Mehndi Hasaan and Ct. Umed and secret informer; Team No.2 comprised of SI Sudhir Gulia, HC Abbas Raja & Ct. Pradeep; Team No.3 comprised of SI Baljeet and the names of other members he does not remember and the Team no.4 was comprising of Ct. Shesh Dhar and Ct. Ramesh. The witness has deposed that he was in civil dress whereas all the other members of the raiding party were in uniform. According to the witness, he was directed by Inspector Puran Chand to go inside the park and to hear the conversation of the said boys and also directed him to signal the raiding party by VaryLight Pistol (V.L.P.), after confirmation. The witness has further deposed that he thereafter went inside the park from the wall which was in a broken condition towards Neher Side and concealed himself behind a tree and tried to hear the conversation of the boys who were sitting in the park. According to the witness, he heard that one boy namely Pappu Pager was telling to St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 22 of 51 other boys that he had a knife/ churra and he would hold the Manager of Petrol Pump on the point of that knife. The witness has further deposed that Pappu Pager told other boys that Yashpal who having a knife would manage the Salesman and Neeraj would put the red chili powder in their eyes. The witness has deposed that he also heard Pappu saying that Arjun Gulati would snatch the money from the Cashier and also to remove the money from the galla and if somebody obstructs, they should attack them. The witness has further deposed that Pappu also instructed that they should not call anyone by his name and after finishing their work they would flee away on their motorcycles. According to the witness, on hearing the said conversation he got suspicious that the said boys were trying to commit robbery at the petrol pump and he therefore fired from his VLP after which the boys started running towards the main gate of the park and he also started following them. The witness has further deposed that all the boys were apprehended by the police party which was positioned outside the park. The witness has deposed that SI Baljeet and his team apprehended the accused Neeraj; SI Sudhir Gulia and his team apprehended the accused Yashpal and Nirmal. He helped his team in apprehending the accused Naresh @ Pappu Pager and Arjun Gulati. He has deposed that on search the accused Naresh @ Pappu was found in possession of one knife/ churra. He further deposed that Inspector Puran Chand prepared the sketch of St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 23 of 51 the knife recovered from the accused Pappu Pager whose total length was found to be 39.5 cm, the length of the blade was 27.5 cm and the handle was 12 cm in length and the said knife was thereafter put in a piece of cloth and converted in a pullanda which was sealed with the seal of PC and its seizure memo was prepared which is Ex.PW4/A bearing his signatures at point A. According to the witness, all the members of the police party produced the accused persons apprehended by them along with the weapons, before Inspector Puran Chand. He has deposed that the accused Neeraj was found in possession of one polythene containing red chili powder and one iron rod and one dada were recovered from the accused Yashpal and Nirmal but he is unable to tell from whose possession the iron rod was recovered or from whose possession the danda was recovered. He has deposed that the danda, iron rod and red chili powder were seized and taken into possession and their seizure memos were also prepared. The three motorcycles were also taken into possession and their seizure memos were prepared and the seal after use was handed over to HC Shesh Dhar. According to him, Inspector Puran Chand prepared a Tehrir and got the present FIR registered through Ct. Devender who returned to the spot along with SI Hira Lal to whom the investigations were handed over and thereafter SI Hira Lal prepared the site plan at the instance of Inspector Puran Chand and took into possession all the seized articles and after interrogation all St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 24 of 51 the accused persons were arrested and their personal search was conducted. The arrest memo of accused Naresh @ Pappu is Ex.PW4/B; the arrest memo of accused Ajun Gulati is Ex.PW4/C; the personal search memo of accused Naresh @ Pappu Pager is Ex.PW4/D and the personal search memo of the accused Arjun Gulati is Ex.PW4/E, all the said documents bear his signatures at point A. The seizure memo of motorcycle bearing no. DL8SZ8691 which is Ex.PW4/F is bearing his signatures at point A. According to the witness, the accused Arjun Gulati disclosed that he had lifted the motorcycle bearing no. DL8SZ8691 from H Block Shalimar Bagh. He has deposed that thereafter, they all left the spot and returned to the police station where his statement was recorded by the IO. The witness has identified the case property i.e. dagger/ knife with a wooden handle as the same which was recovered from the possession of accused Naresh @ Pappu which is Ex.P1, danda (which the witness is unable to tell from whose possession the said danda was recovered) which danda is Ex.P2, iron rod (which the witness is unable to tell from whose possession the said danda was recovered) which is Ex.P3, white polythene having the red chili powder as the same which was recovered from the possession of accused Neeraj @ Vikram which is Ex.P4.
St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 25 of 51
The Ld. PP for the State with due permission of the court has put leading questions to the witness since he was not giving the complete details, wherein the witness has admitted that the disclosure statements of all the accused persons were recorded. The disclosure statement of accused Naresh @ Pappu is Ex.PW4/G and the disclosure statement of accused Arjun Gulati is Ex.PW4/H both bearing the signatures of this witness at point A. Witness has further admitted that the accused Arjun Gulati has pointed out the place i.e. House No. BH660A, Shalimar Bagh, from where he had lifted the motorcycle on which the investigating officer prepared the pointing out memo which is Ex.PW4/I bearing his signatures at point A. During his cross examination by Ld. defence counsels, the witness has deposed that the ravangi was made collectively regarding all the members of the police party and not individually. He further deposed that the secret information was reduced into writing vide DD No.18A but he is not aware if the senior officers were informed about the secret information by Inspector Puran Chand. According to him, the SHO did not give any information regarding the secret information received by him to the ACP in his presence. The witness has deposed that they went to the spot in a Tata407 which was being driven by Ct. Ramesh and Inspector Puran Chand was sitting along with the driver whereas secret informer also sat in the cabin of the driver. He has deposed that all the members of the police party were St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 26 of 51 duly armed and were carrying their official arms and that the entry with regard to the arms would be available in the Malkhana register. He has further deposed that the distance between the Police Station Shalimar Bagh and spot of the incident is about 2 km. According to the witness, on one side of the road is Kainchi Wala Bagh and on the other side there is Police Station Samay Pur Badli. He admits that there was no public person in the police party. According to the witness the IO had tried to join 45 public persons near the Samay Pur Badli red light but they refused and none agreed but IO did not take their names and addresses nor any any notice was given to the public persons who refused to join the police party. He has also deposed that on one side of the park there is Ring Road; on another side of the park there is a Neher and there is Haider Pur village on remaining sides of the park and that the boundary of Haider Pur village touches the boundary of the park. The witness has admitted that he is carrying a mobile since the last five to six years and also on the date of incident also but is unable to tell if his mobile phone had any audio recording facility or was having any camera. Witness is unable to tell where Arjun Gulati is residing and states he only aware that he residing at Shalimar Bagh at BN block. He has deposed that he knows that Naresh is residing at Kishor market Kingsway camp and when he was posted at Police Station Mukherjee Nagar, he knew that Naresh was BC (Bad Character) of that area and also knew his St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 27 of 51 address. He also knew Neeraj as a child when he was posted at Mukherjee Nagar area but he has not seen his house but he resides in Indira Vikas Colony. Witness does not know where Yaspal Bansal is residing but according to him it is somewhere in Jahangirpuri. He has deposed that the distance between the gate of park and the red light of Haider Pur is about 400 meters / less than half a kms. He has also deposed that he was hiding about 1015 steps away from the accused. He has denied the suggestion that on account of the noise of the vehicular traffic on the ring road, it is not possible to hear what is being said at a distance of 1015 steps easily. According to him, all the accused were sitting when he was hiding behind the bushes but he did not make any audio recording of what was being spoken by the accused as IO did not give him any audio recording equipments. He has deposed that the place where he was hiding was about 10 steps away from the gate and that the place where the accused were sitting was hardly 78 steps away from the gate and it would hardly take 1520 seconds from the gate to reach the place where the accused were sitting. He has denied the suggestion that from the place where the accused were sitting everything outside the park is visible through the gate. According to him, he had fired the light pistol after about 34 minutes of his hiding behind the spot and the accused reached the gate on seeing the light pistol between 1520 seconds. He has further denied the suggestion that on firing of the St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 28 of 51 light pistol even members of the police party who were outside the park were also visible. According to the witness, after the light pistol was fired, there was not much disturbance and no alarm was raised by the accused who simply ran towards the gate and thereafter he raised an alarm by saying PakroPakro. According to the witness, there were no public persons and that the all the accused started running towards one directions i.e. towards the gate. Witness has denied the suggestion that the accused under these circumstances would not have run towards the gate where other members of the police party were standing. Witness has also deposed that the accused came out of the smaller gate one by one and went out first, he was away from the gate and was behind them. According to the witness, before Ct. Devender took the rukka to the police station the entire proceedings took about three hours. He has further deposed that after registration of the FIR, SI Hira Lal came to the spot about 12:30 - 12:45 AM (midnight). In his presence the IO did not lift any finger prints from the dagger recovered from the accused. According to him, Ct. Devender left the spot around 11:00PM on foot. Witness has deposed that all the motorcycles were removed from the spot in Tata407 but he does not recollect if the keys of the motorcycles were also recovered or if the same has been mentioned in any of the seizure memos. The witness has further deposed that Inspector Pooran Chand told him that some persons were sitting inside the park St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 29 of 51 and it took them 34 minutes to reach inside the park through broken wall. He has deposed that his statement was recorded by the IO on 25.05.2009 but he did not tell the IO regarding his reaching in the park through broken wall in his statement. He has denied the suggestion that he has deposed falsely and all this proceedings of this case are false and concocted. According to him, the distance between the broken wall and place of his position of hearing is about 2025 steps. The witness has further deposed that there was a walking track between the place where he was standing and where the accused persons were sitting in the park. He did not tell the investigating officer that he had shouted PakroPakro. The witness has denied the suggestion that he did not tell this to the IO because no such thing has happened. He has further denied the suggestion that on account of his previous enmity with the father of the accused Naresh, he has got him involved in the present case. According to the witness, they started from police station at about 7.20 PM and returned back at about 4.304.35AM on the next day. He deposed that he had told the IO that the incident was of 24.05.2009 but his statement was recorded on 25.05.2009 in the morning. He has admitted that there is a cutting on my statement U/s 161 Cr. P. C. which is Ex.PW4/DX1 recorded by the IO on the date where the date of 25.05.2009 has been cut and shown as 24.05.2009 at point A but according to the witness, he does not know why the IO had cut the date since he had given the St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 30 of 51 date as 25.05.2009. Witness has denied the suggestion that there was no incident where the accused were present in the park or that all the accused persons were lifted from their residence. He has deposed that he does not know if the name of place of incident is not Kainchi Wala Bagh but something else but it is commonly called as such.
PW5 Inspector Pooran Chand has deposed that on 24.5.2009 he was posted at police station Shalimar Bagh and was present in the police station when he received secret information that the gang of Pappu Pager would be collecting near the Indian Oil Petrol Pump, Haider Pur in order to commit robbery. He got this information recorded vide DD No. 18A which is Ex.PW5/A, and conveyed this information to the SHO who further brought this information to the notice of the ACP. He thereafter formed a raiding party comprising of himself, SI Sudhir Gulia, SI Baljeet, HC Shesh Dhar, HC Abbas Raja, Ct. Umed, Ct. Mehndi Hassan, Ct. Manoj, Ct. Devender, Ct. Pradeep and Ct. Ramesh. DD No. 19A in this regard was lodged and the same is Ex.PW5/B and they all left the police station in TATA 407 vehicle and on the way he divided all the members of raiding party into four teams. His team was comprising of himself, Ct. Mehandi and Ct. Umed i.e. Team No.1; SI Sudhir Gulia, HC Abbas and Ct. Pradeep were members of Team No.2; Team No.3 was comprising of SI Baljeet, Ct. Ramesh and Ct. Manoj and the Team No. 4 was comprising of HC Shesh Dhar and Ct. St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 31 of 51 Devender. They all reached at Kainchi Wala Bagh and parked our vehicle at the corner of Petrol Pump and deputed the members of the raiding party at different places. They found three motor cycles at the gate of the park. Ct. Devender and HC Shesh Dhar were deployed towards Nahar sidebehind the wall and the member of team no.2 were deployed at Outer Ring Road on the bank of Nahar, near the wall and team no.3 were deployed at service lane were the position of his team was at the corner of the park towards Nahar. According to the witness, the secret informer was also with them who identified the persons sitting in the park as the members of Pappu @ Pager gang. The witness deposed that Ct. Mehndi Hassan was in civil dress whom he briefed and directed him to hear the conversation of those boys sitting in the park and after being satisfied with the secret information, to made the signal from his very light pistol (VLP). At about 8.15PM Ct. Mehandi Hassan made the signal from his VLP and after receiving the signal they also took position and after about 1520 seconds the persons sitting in the park were started coming out from the park one by one and started sitting on their motorcycles. According to the witness, the members of the three teams apprehended five boys; his team i.e. team No.1 apprehended Arjun Gulati and Pappu @ pager who were already sat on their blue coloured Pulsar motorcycle bearing no. DL8S Z 8691; Team No.2 apprehended two persons whose names were later on revealed as St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 32 of 51 Yashpal Bansal and Nirmal @ Titu who were also sat on their red coloured motorcycle bearing no. DL8S3233 make Pulsar of red colour whereas team No. 3 apprehended one boy whose name was later on revealed as Neeraj@ Vikram who was also sat on his black coloured motorcycle bearing no. DL6SX6858. The witness has deposed that all the said boys were casually searched on which one knife was recovered from the possession of accused Pappu Pager; one danda was recovered from the possession of accused Yashpal Bansal; one iron rod was recovered from the possession of accused Nirmal, a packet of red chilli powder was recovered from the possession of accused Neeraj@ Vikram. According to the witness, he prepared the sketch of the knife recovered from the accused Pappu @ Pager whose total length was found to be 39.5 cm, the length of the blade was 27.5 cm and the handle was 12 cm in length. Further, the danda recovered from the possession of accused Yashpal Bansal was 2.5 feet in length and the iron rod recovered from other boy was found to be 2 feet and 8.6 inches in length. Thereafter the knife, danda, iron rod and red chili powder were converted into separate pullandas with the help of cloth and sealed with the seal of PC and were taken into possession and they were duly seized. The pulanda containing chhura was taken into possession vide memo Ex.PW4/A bearing his signatures B; pulanda containing danda was taken into possession vide seizure memo Ex.PW5/C bearing his signatures at St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 33 of 51 point A; pulanda of Mirchi Powder was taken into possession vide seizure memo Ex.PW3/A bearing his signatures at point B and the parcel of Iron rod was taken into possession vide memo Ex.PW5/D bearing his signatures at point A. Thereafter he prepared rukka which is Ex.PW5/E and same was sent to the police station through Ct. Devender for getting the case registered who along with SI Heera Lal came back to the spot with the copy of FIR and original rukka and further investigations of this case was handed over to SI Heera Lal who prepared the site plan Ex.PW5/F at his instance. He handed over the entire sealed parcels, the accused persons and the documents to SI Hira Lal after which he was relieved by SI Heera Lal from the spot. The witness has correctly identified the accused persons present in the court. He also identified the case property i.e. dagger/ knife with a wooden handle as the same which was recovered from the possession of accused Naresh @ Pappu Ex.P1; danda which the witness has identified as the same which was recovered from the possession of accused Yashpal Bansal Ex.P2; iron rod which the witness has identified as being recovered from one of the boys apprehended at the spot but from whom he cannot tell Ex.P3; white polythene having the red chili powder which the witness has identified as the same which was recovered from the possession of accused Neeraj @ Vikram which is Ex.P4.
St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 34 of 51
In his cross examination by Ld. defence counsels, the witness has deposed that the secret informer had come in the police station at about 6:306:45 PM and at that time no police official was present in his office. He got the DD No.18A recorded at about 6.45 PM and that the SHO and ACP were present in the police station at that time. According to him, directions were not given in writing by the SHO or ACP to do the needful. He has also stated that TATA 407 was a government vehicle and admits that every government vehicle has a log book in which the entry for going and coming back is made and that in this case the driver of the vehicle might have made the entry. He did not place the copy of the relevant entry in the log book regarding this case. Witness has denied the suggestion that they did not go anywhere therefore no entry regarding the departure in this case was made in the log book. According to the witness, the distance between the police station and the spot is about two kilometers and they took about 1520 minutes in reaching to the spot. He got the official arms issued and reached at the spot at about 7.45 PM and that the secret informer sat near him in the driver's cabin. He has admitted that the park is situated on the outer Ring Road and the said road remains busy almost 24 hours. He made efforts to get the public witness joined but none agreed and left the spot and he did not give any legal notice to the persons declining to join the police party. He has denied the suggestion that he did not give any notice to such St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 35 of 51 persons as they were not present at the spot. According to him the park is situated at the distance of half kilometer from the traffic signal and there was street light inside the park and also there is jogging path inside the park which is a park big one. The witness has deposed that the accused were found sitting at a distance of about 1520 yards from the gate of the park and that no photographer was called to join the police party. He has stated that the park in question is maintained by the government but he did not notice any Chowkidar in the park even no name of the mali was written in the park or at any other place. He has also deposed that the park is having a boundary wall of about 1012 feet but he is unable to tell the number of gates in the park and there is abadi behind the boundary wall of the park. He has denied the suggestion that the public persons are normally present inside the park being summer season. He has admitted that he was having a mobile phone with a camera and other members of the raiding party might also be having mobile phones. According to him, the main gate of the park is having a small gate also which was opened and the big gate was closed at that time. He has deposed that he is not sure that whether Neeraj can drive a motorcycle or not and he only saw Neeraj sitting on the motor cycle. He has also deposed that he prepared 56 papers at the spot and the entire process took about three hours. According to him, Ct. Mehandi Hassan had fired from his VLP after about 1520 minutes and Ct. St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 36 of 51 Devender had gone to the police station with rukka at about 11.10 PM and returned back at the spot with copy of FIR at about 12.0012.30 AM (Midnight). The witness has further deposed that the Ct. Mehandi Hassan entered in the park by jumping from the wall from Nehar side and he was present outside the park at that time. He has admitted that from the place where the accused were sitting, the gate is visible. He states that he reached the police station at about 1.30 AM (Midnight) and made made an arrival entry at the police station. He has denied the suggestion that there is no DD entry on record because they did not go to the spot. He has deposed that no one stopped at the spot when VLP was fired. According to him, the petrol pump was open when they reached there and he had made efforts to join the petrol pump employees in the raiding team but none agreed. According to him, no efforts were made to lift finger prints from danda recovered from the possession of accused Yash Pal. He does not remember by which vehicle Ct. Devender had left the spot with rukka for police station. He has admitted that Ct. Devender did not go in TATA 407 along with rukka and states that the second IO came to the spot on motorcycle, after which he left the spot at about 1.15AM (midnight) in TATA 407 driven by Ct. Ramesh, who left him at police station and returned back to the spot. The witness has further deposed that they have not taken the finger prints from the articles recovered from the possession of the accused St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 37 of 51 persons. He has further deposed that SI Baljeet along with Team No.3 had taken the search of the accused persons. They have not seized the shirt of accused Neeraj from which the Mirchi power was recovered. He does not remember whether the motorcycles from which the accused persons were apprehended were in start condition or not. He has denied the suggestion that that no such incident has taken place and the entire paper work was done while sitting in the police station and that there was no firing incident nor any incident where the accused were present in the park or that all the accused persons were lifted from their residence.
PW6 Gaurav Sehgal is the registered owner of the motorcycle bearing No. DL8SZ 869 Ex.P5. According to him on 26.5.2009, he obtained the aforesaid motorcycle on superdari vide copy of superdarinama Ex.PW6/A bearing his signatures at point A. This witness has not been cross examined on behalf of the accused despite opportunity in this regard.
Statement of Accused & Defence Evidence:
After completion of prosecution evidence, statements of the accused were recorded under Section 313 Code of Criminal Procedure wherein all incriminating evidence was put to the accused which they have denied.
The accused Arjun Gulati and Neeraj have examined one St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 38 of 51 witness each in their defence. The remaining accused have not examined any witness despite opportunity in this regard.
DW1 Krishan Pal has deposed that on 22.05.2009 he was at his home when Ct. Mahendi Hassan along with one police official came to and asked about his son on which he told him that his son is at home. According to the witness, Ct. Mahendi Hassan told him that he wanted his son for investigations in some case and took his son along with them and said that they will release him after two hours. The witness has further deposed that after 23 hours, he went to police station Shalimar Bagh and inquired about his son. He deposed that they showed him his son and said that the SHO was not at the police station and asked him to come on the next day.
DW1 has further deposed that on 23.05.2009, he again visited the police station but the police gave him the same reply that SHO was not at police station and his son was sitting there. Thereafter, on 24.05.2009 at about 1:00 PM, he again went to police station and remained there till about 12 midnight and his son was again found sitting there. According to the witness, at approximately 11:30 PM Ct. Mehndi Hassan came at police station and told him that his son had been arrested in some case because he and his son had not closed their pig meat shop due to which reason he had arrested his son which was a consequence of his not following his directions. According to the witness, he also told him that he should go to the St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 39 of 51 court on next day. The witness has further deposed that Ct. Mehndi Hassan has prior enmity with him because he and his son were running a pig meat shop. The witness has further deposed that Ct. Mehndi Hassan further told him that he should give his message to all other pig meat shop keepers so that they should close their shops and if they did not follow his instructions then they would also have to face dire consequences for the same.
In his cross examination by Ld. APP for the state, the DW1 has deposed that he is running the meat since the year 2007 which shop is not registration nor he has any tehbazari rights to run the shop. He has deposed that he did not make any complaint to the senior officer regarding Ct. Mehndi Hassan giving him threats nor he made any complaints to any authority against Ct. Mehndi Hassan. He has denied the suggestions that his son was lifted because of his involvement in the present case and the issue of his running the illegal meat shop is not connected with the present case. According to him, he went to the court on the next day when his son was produced before the Ld. MM. He did not tell the MM of any court that his son has been falsely implicated on account of the threat of Ct. Mehndi Hassan. He has deposed that prior to this incident, his son was not involved in any other case. He does not know any Arjun Gulati resident of Shalimar Bagh or Naresh resident of Kishan Market, Kingsway camp or Yashpal resident of Sanjay enclave or St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 40 of 51 Nirmal @ Titu resident of Kingsway camp. He has denied the suggestion that being father of accused Neeraj he has made false allegations against Ct. Mehndi Hassan and has manipulated the story of his son being taken away by him and his false involvement in the present case.
DW2 Chetan Kumar Sapra has deposed that on 23.05.2009 he was present at the house of accused Arjun Gulati and was sitting with his mother and at around 3:30 PM two police officials came and asked about Arjun Gulati and took him to the police station. According to the witness, the police officials told him that he is required for some inquiries and would thereafter leave him.
He has deposed that he waited till evening i.e. till about 6 PM and thereafter he along with the mother of the accused went to the police station Shalimar Bagh and when he asked the said police persons about Arjun Gulati, they told him that he would be released on Monday and thereafter they came back.
In his cross examination by Ld. APP for the state, DW2 has deposed that he used to work at the shop of his nephew (bhanja) Arjun Gulati at 2898, Teliwara Chowk, Sadar Bazar which shop opens at 10 AM by accused Arjun Gulati and he used to reach the said shop at about 12 noon and he (witness) used to stay there till about 5 PM and the said shop is closed at about 77:30 PM. The witness has further deposed that the said shop is closed by Arjun St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 41 of 51 Gulati in his absence and he (witness) used to go daily at the said shop. The witness has deposed that it was Saturday on 23.05.2009 and the police official came on that day at about 33:30 PM at the residence of Arjun Gulati who were in uniform and the name plate was reflecting the name of Hira Lal and Mehndi who came on yellow colored bullet. He has denied the suggestion that he was not present at the house of accused on 23.05.2009 or that the accused Arjun Gulati was not present at his residence on 23.05.2009 or that he is manipulating the story of taking away Arjun Gulati from his residence on 23.05.2009. According to him, on the same day they went to police station at about 66:30 PM and met the aforesaid police officials but they did not meet the SHO. Witness does not know as to in which case the accused persons have been arrested. According to him he was not present with the accused Arjun Gulati on 24.05.2009 at about 8:15 PM. He does not know the fact of this case. He has deposed that after about 1015 days after 23.05.2009, he came to know that accused Arjun Gulati have been implicated in the present case. He did not make any complaint to any senior police official regarding false implication of accused Arjun Gulati. He does not remember the date when he went to the house of his sister Sheel Gulati and came to know that the accused has been implicated in this case. He has denied the suggestion that the date 23.05.2009 has been tutored by the accused. He does not know the details of the cases St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 42 of 51 against the accused Arjun Gulati. He has denied the suggestion that since he does not remember the date of his marriage and the date of death of his wife he has therefore deposed falsely regarding date as 23.05.2009.
FINDINGS I have gone through the testimonies of various witnesses and other material on record. I have also gone through the written synopsis / memorandum of arguments filed on behalf of the accused and duly considered the same. The prosecution has examined as many as six witnesses to discharge the onus upon them all of whom are the police officials. I may mention that PW6 Saurav Sehgal is a formal witness who had obtained the motorcycle bearing No. DL8SZ 869 (Ex.P5) on superdari.
The case of prosecution is that on 24.05.2009 at about 6:45 PM Inspector Pooran Chand received a secret information that gang of Pappu Pager would be coming on motorcycles at Kainchiwala Bagh, Outer Ring Road at about 8:00 PM in order to commit robbery at Indian Oil Petrol Pump, Haiderpur and if raided could be apprehended along with the arms. It is further case of the prosecution that the information was communicated to the SHO and the ACP and on instructions Inspector Puran Chand collected the staff present in the police station and informed them about secret St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 43 of 51 information and after recording DD No. 18A a raiding party was constituted comprising of Inspector Puran Chand, SI Baljeet Singh, HC Shesh Dhar, SI Sudhir Gulia, HC Abbas Raza, Ct. Umed, Ct. Mehandi Hassan, Ct. Manoj, Ct. Devender, Ct. Pradeep and Ct. Ramesh. The raiding party including the secret informer left the police station in Tata 407 vehicle vide DD No. 19A along with arms and ammunition and reached at Hiaderpur Red Light, Outer Ring Road at about 7:45 PM and requested five to six passersby to join the raiding party but none agreed. The raiding party reached the spot and found three motorcycles parked at the gate of the Park and some persons sitting in the park in circle to whom the secret informer pointed out as the members of Naresh @ Pappu Pager gang. Thereafter, at about 8:15 PM, Ct. Mehandi Hassan who was in civil dress, on instructions from the Investigating officer went near those persons sitting in the park to hear the conversation and fired from his Very Light Pistol (VLP) and on this all the accused started running towards their motorcycles near the gate when SI Baljeet and his team apprehended the accused Neeraj; SI Sudhir Gulia and his team apprehended the accused Yashpal and Nirmal whereas team of Ct. Mehandi Hassan apprehended the accused Naresh @ Pappu Pager and Arjun Gulati. On search of the accused Naresh @ Pappu one knife/ churra was found from his possession; one danda was recovered from the possession of Yashpal Bansal; iron rod was St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 44 of 51 recovered from Nirmal @ Titoo and one polythene containing chilli powder was recovered from Neeraj @ Vikram. Further, the Pulsar Motorcycle No. DL 8SZ 8691 of blue colour on which the accused Arjun Gulati was sitting and also another Pulsar motorcycle of black colour bearing No. DL 6SX 6858, were also recovered from the spot. According to Ct. Mehndi Hassan he was directed by Inspector Puran Chand to hear the conversation of the boys sitting in the park. He has deposed that he heard Pappu telling other boys that he has a churra and he would hold of the Manager of Petrol Pump on the point of knife. According to him, Pappu further told the other boys that Yashpal who was also having a knife would manage the Salesman and Neeraj would put the red chili powder in their eyes and Arjun Gulati would snatch the money from the Cashier and also remove the money from the galla and if somebody obstructed, they would attack them. He has further deposed that Pappu also instructed other boys that they would not call anyone by his name and after finishing their work they would flee away on their motorcycles. It was on hearing this conversation that Ct. Mehndi Hassan fired from his very light pistol on which the other members of the police party surrounded the accused who tried to run away from the gate but apprehended by the police party. It is the admitted case of the prosecution that Kainchi Wala Bagh i.e. the spot of incident, is a public place. The site plan Ex.PW6/F shows that it is situated on St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 45 of 51 Outer Ring Road with service road in front of it and Canal / Neher on the other side. In fact it has been duly admitted by the PW4 Ct. Mehendi Hassan that there is Nehar on one side and on the other side Ring Road is situated and the boundary of the park touches the boundary of Haiderpur Village. He has further deposed that there one small exit gate of the park which opens towards the Haiderpur village.
I have considered the submissions made before me and the written memorandum of arguments placed on record. The ingredients of Section 399 Indian Penal Code are as under :
"Whoever makes any preparation for committing dacoity shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. Hence, it is clear that the essential ingredients of the offence under Section 399 are as follows :
a) Accused persons were five or more in numbers.
b) They were making preparation
c) The preparation was to commit dacoity St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 46 of 51 Further, the essential ingredients of the offence under Section 402 Indian Penal Code are as follows:
a) there was an assembly of five or more persons.
b) The purpose of the assembly was for committing dacoity.
c) Accused was a member of the assembly The incident is of the month of May 2009 at about 8 PM, which is a time when a large number of public persons would have been present in and around the park. The site plan shows the existence of main road and service road around the park. All the witness examined in the court are the police officers. PW1 HC Raghuraj being the Duty Officer and PW2 HC Shesh Dhar, PW3 SI Baljeet Singh, PW4 Ct. Mehndi Hassan and PW5 Inspector Puran Chand, being the members of the raiding party. No public witness had participated in the proceedings either at the spot or during the arrest of the accused or at the time of seizure of the weapons from the accused. In the absence of any independent corroboration it is difficult to believe the testimonies of the police officials. I am not oblivious of the fact that merely because public witnesses have not been joined, would not be a ground to throw away the case of the prosecution. Indeed, the police witnesses are competent witnesses but in a case where public witnesses are not joined, the evidence of St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 47 of 51 the police witnesses have to be scrutinized with great care and caution and it must be seen if it has a ring to truth around it and inspires confidence. Once the public persons were available in the vicinity, they would certainly have heard the noise and gathered around the place and could have easily been joined in the investigation which surprisingly did not happen. The strategic position of the park shows the existence of village on two sides, the Ring Road on the front side and being a public park, there would always be some official from the Horticulture Department or Chowkidar / Watchman at the spot. It is also not possible to believe that despite the fact that it was peak of summer season when children would be having school vacation that the public park would have been completely vacant with not even a single person from the public. Therefore, in view of the above, the uncorroborated testimonies of these police officials have to be read with caution.
Further, the testimonies of all the police witnesses show that the police party had prior information regarding the presence of the accused at the spot. All the members of the police party must have been carrying their mobiles and there were sufficient opportunities for them to have arranged some sophisticated gazettes like recorders for recording any conversation of those boys at the spot, which again surprisingly did not happen in the present case. Simply to say that the police personnel had hidden behind the bushes and heard the St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 48 of 51 conversation of the accused persons, would not be sufficient. The member of the police party i.e. Ct. Mehndi Hassan who has deposed that he has heard the conversation after hiding himself, could have recorded the said conversation on his mobile phone, which has not been done. Also, the members of the police party have deposed that they had been using and carrying mobile phones, a fact which stands confirmed from the testimonies of PW5 SI Puran Chand who has deposed that his phone has a camera and recording facility, why then they did not record the conversations of the boys in their mobile phone.
Further, the testimonies of witnesses is full of contradictions and inconsistencies with regard to the place of incident, distance of the said place from the police station and the time they reached to that place, the height of the boundary wall of the park, the number of exit and entry points of the park, the distance of the distance of the residential areas from the park particularly Haiderpur village, and hence does not inspire confidence of the case put forwarded by the prosecution. It is also not believable that Ct. Mehandi Hassan having fired the VLP only the accused would be visible to the police party. Rather, all the officials of the police party who were in uniform would also have been visible to the accused in the light of the VLP. Therefore, under these circumstances, it is unbelievable that all the accused would be readily running towards St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 49 of 51 the direction of the police officials who were all in uniform. The version given by these witnesses do not find any corroboration from any independent source. How convenient it is for these police witnesses to depose in chorus without any regards for established norms of Criminal Law.
Non joining of public witnesses during the proceedings coupled with tamed and twisted evidence by the police witnesses leave a grave doubt in the mind of this court about the allegations made against the accused persons. I, therefore, hold that the prosecution has failed to prove its case beyond reasonable doubt that on 24.05.2009 at about 8.15 PM, the accused Naresh @ Pappu, Yaspal Bansal, Arjun Gulati, Neeraj @ Vikram and Nirmal @ Titoo (since Proclaimed Offender) had assembled at Kainchi Wala Bagh, near Haryana Nahar, Haiderpur, Delhi, for the purses of committing robbery at Petrol Pump and made preparations for committing dacoity. Benefit of doubt is given to all the accused Naresh @ Pappu, Yaspal Bansal, Arjun Gulati and Neeraj @ Vikram, who are hereby acquitted from the charges under Section 399/402 Indian Penal Code. Their bail bonds are cancelled and sureties stand discharged.
St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 50 of 51
File be consigned to Record Room to be taken up on arrest of the accused / Proclaimed Offender Nirmal @ Titoo.
Announced in the open court (Dr. KAMINI LAU)
Dated: 12.05.2011 ASJ (NW)II: ROHINI
St. Vs. Naresh @ Pappu Etc., FIR 150/09, PS Shalimar Bagh Page 51 of 51